FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Lorraine Nordlund and David S. Schell, Judges
PRESENT: Lemons, C.J., Goodwyn, Mims, McClanahan, Powell, and Kelsey, JJ., and Lacy, S.J.
D. ARTHUR KELSEY, JUSTICE.
Dmitry Mikhaylov appeals a final judgment against him in a civil jury trial, claiming the trial court misapplied principles of judicial estoppel and erroneously failed to exclude from evidence expert testimony that had not been previously disclosed during pretrial discovery. Agreeing with both assertions, we reverse and remand.
In September 2011, Mikhaylov pleaded guilty to assault and battery of Lisa Sales. See Code § 18.2-57. A general district court accepted his plea and found Mikhaylov guilty. In 2013, Sales filed a civil suit against Mikhaylov seeking damages for, among other things, the assault and battery. In his answer, Mikhaylov admitted that he had pleaded guilty to the criminal charge but denied that he had actually committed the offense and further denied the extent to which Sales claimed she was injured. Mikhaylov repeated these denials in response to a request for admissions. Throughout the civil proceeding, Mikhaylov took the position that Sales had fabricated the story because of ulterior motives and that he had a mitigating explanation for his earlier guilty plea.
Sales filed a motion for partial summary judgment on the counts for assault and battery. Citing Code § 8.01-418, Sales argued that Mikhaylov's guilty plea was "admissible evidence of civil battery and assault" and was "sufficient" to establish his liability as a matter of law. Sales did not mention collateral estoppel, judicial estoppel, or any theory of issue preclusion in either her brief or oral argument on the motion. In response, Mikhaylov agreed that his guilty plea was "admissible to prove liability" but countered that he was nonetheless "free to explain the circumstances surrounding the plea and the matter ultimately becomes an issue of fact for the jury to decide."
At the hearing on the motion, Sales repeated her argument that the guilty plea was admissible under Code § 8.01-418 and that no other circumstances raised a genuine issue of material fact concerning Mikhaylov's liability for the assault and battery. The court asked whether Sales relied on principles of collateral estoppel. Sales disclaimed the theory, pointing out that "there's no mutuality between the criminal proceeding and the civil proceeding."
Turning to Mikhaylov, the court asked, "Are you familiar with the doctrine of a judicial estoppel?" Mikhaylov replied that he was familiar with the doctrine but that it did not apply to this case because Sales "wasn't a party in the criminal proceeding. It was the Commonwealth that was the party. That's the problem, your Honor, with the [doctrine] that you cited."
The court rejected this contention, holding that Mikhaylov was "free to explain the circumstances" of the offense but could not deny that he committed the "act of assault and battery." The court added that Mikhaylov was precluded from introducing any evidence seeking to explain the "circumstances surrounding the plea" because he should have either appealed or brought a habeas action if he wanted to "attack" his guilty plea. Mikhaylov again objected, arguing that he was not attacking the validity of the plea, but rather wanted merely to explain why he agreed to it.
The court's written order stated "that the Court makes a finding of an admission by the Defendant with his plea of guilty to the criminal charge of assault and battery and, at trial, the Defendant cannot deny that he has committed an assault and battery on the grounds of the judicial estoppel doctrine." After thus establishing Mikhaylov's liability as a matter of law, the order stated that he "may argue at trial" any issue related to damages or proximate cause. Despite these findings, however, the order stated that the court denied the motion for partial summary judgment.
When the case proceeded to a jury trial,  Sales testified that Mikhaylov had perpetrated a "brutal attack" on her for three to four hours. In response, Mikhaylov took the stand to deny the allegations against him. When he testified that he did not "attack" Sales as she claimed, the court sustained an objection by Sales. The court reasoned, "How can you have an assault and battery without an attack?" Mikhaylov answered that any "unwanted" touching could constitute a technical assault and battery, but the allegation of an "attack" went well beyond that. The court disagreed and instructed the jury to "disregard" Mikhaylov's testimony "that he did not attack" Sales.
At trial, Sales offered the expert testimony of Dr. Kenneth Lippman regarding the nature and extent of her injuries. Mikhaylov objected to the expert testimony to the extent it offered an opinion on the need for future medical treatment because the expert designation required by the pretrial scheduling order did not disclose any opinion on this subject and neither party had addressed the subject during the deposition of the expert. Sales conceded both of these points but argued that Mikhaylov nonetheless should have anticipated Dr. Lippman's opinions on future medical treatment.
The trial court overruled the objection on the ground that it "would not be fair" to Sales for Mikhaylov to wait until trial to object to Dr. Lippman's previously undisclosed ...